INTERNATIONAL TERMINAL OPERATING CO., INC.

OSHRC Docket No. 13021

Occupational Safety and Health Review Commission

January 24, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

James J. Griffin, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

An October 2, 1975 decision of Administrative Law Judge Seymour Fier is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Judge Fier affirmed a citation that alleges a repeat violation of section 5(a)(2) of the Act on the basis of non-compliance with the occupational safety standard at 29 C.F.R. 1918.105(a). n1 He assessed a penalty of $1,000. We have examined the record and conclude that there was noncompliance with 1918.105(a) but that the Judge erred in classifying the violation as "repeat". We also conclude that a penalty should not be assessed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 1918.105(a) states, "Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Requirements for Industrial Head Protection, Z89.1 (1969)."

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The facts are these: On March 19, 1975, a crew of stevedores employed by Respondent was unloading a cargo of frozen meat from a merchant vessel in Port Newark, New Jersey. The crew consisted of approximately 80 employees. Six of them were not wearing hardhats. They were exposed to the possibility of incurring head injuries since their work brought them beneath loaded cargo slings. The compliance officer who inspected the worksite considered the possibility of a head injury to be remote but that it would be serious if it occurred.

Respondent has been cited previously for noncompliance with 1918.105(a). In this case Complainant relies on a prior citation, issued on November 1, 1973, as the bases of his repeat allegation. It was not contested and therefore became a final order of this Commission pursuant to 29 U.S.C. 659(a).

Respondent defended before the judge on the basis that it did everything it could reasonably do to ensure that the stevedores would wear their hardhats. Hardhats were issued to all employees. The time-keeper at the work site refused to sign in employees who did not have hardhats [*3] with them. A telephone paging system announced five minutes before the work day that hardhats should be worn. Signs were posted explaining in Spanish as well as in English that Respondent was required by Federal law to enforce the hardhat rule. Respondent, although aware that the hardhat requirement was not always observed, did not discipline or fire any employee for failure to wear a hardhat.

The Judge rejected Respondent's defense. He held that because Respondent had never disciplined employees who failed to wear hardhats it had not exhausted all means of achieving compliance. He found the violation to be "repeat" in view of the prior citation. Although Complainant had proposed a penalty of $130, the Judge assessed $1,000.

On review, Respondent raises the following issues: (1) Whether 1918.105(a) is unenforceably vague; (2) Whether the Judge erred in rejecting Respondent's defense; that it had taken all steps reasonable to achieve compliance; (3) Whether the violation, if there was one, should be classified as "repeat" in nature; and (4) Whether the $1,000 penalty assessed by the Judge is excessive.

The claim that 1918.105(a) is vague was considered and rejected by the [*4] Commission in Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770, BNA 3 OSHC 1003, CCH OSHD para. 19,526 (1975), aff'd, 534 F.2d 541 (3rd Cir. March 26, 1976).

With regard to Respondent's second issue, this case is indistinguishable on its facts from the prior longshore hardhat cases. Atlantic & Gulf Stevedores, Inc., supra; J.A. McCarthy, Inc., 76 OSAHRC 65/A2, BNA 4 OSHC 1358, CCH OSHD para. 20,813 (June 22, 1976); International Terminal Operating Corporation, 75 OSAHRC 13/C12, BNA 3 OSHC 1831, CCH OSHD para. 20,242 (1975), aff'd, No. 76-1070 (1st Cir. Aug. 24, 1976); Independent Pier Company, et al., 20 OSAHRC 810, BNA 3 OSHC 1674, CCH OSHD para. 20,100 (1975), petition for review, No. 75-2453 dismissed (3d Cir., May 18, 1976). The Judge's decision finding Respondent in violation will be affirmed.

The allegation that the violation was "repeat" is based solely on the fact that a prior citation for violation of the same standard had become a final order. n2 Without reaching the question of whether the existence of a prior uncontested citation by itself would be sufficient to establish a "repeat" violation, we think that the violation in this case should [*5] not be so classified. Cases involving the longshoring hardhat standard have presented difficult questions regarding the extent of employers' duties under the Act which questions were complicated by the Secretary's enforcement policy. At the time the violation in this case occurred, Respondent was actively engaged in litigating these issues, International Terminal Operating Corporation, supra. Under these circumstances, the fact that one prior citation is a final order is a mere technicality and does not justify classifying the instant violation as "repeat." See J.A. McCarthy, Inc., supra. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Section 17(a) of the Act provides that any employer who willfully or repeatedly violates a standard may be penalized up to $10,000. Violations which are not willful or repeated may incur penalties up to $1,000. 29 U.S.C. 666(a) - (c).

n3 We note that the Secretary agreed in another longshore hardhat case that a citation for violation of this standard which issued at a different port should not be the basis of a repeat allegation. J.A. McCarthy and Co., 76 OSAHRC 3/D1, BNA 3 OSHC 1892, CCH OSHD para. 20,331 (1976).

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

With respect to the question of an appropriate penalty we believe that the Judge's assessment was entirely inappropriate on the facts. Respondent in this case has made a substantial effort to ensure that its longshoremen would wear their hardhats and was largely successful in achieving compliance, as shown by the fact that only a small percentage of its employees were unprotected. This circumstance warrants giving particular emphasis to Respondent's good faith. Moreover, the record indicates that an injury was unlikely. Accordingly, though Respondent is a relatively large company and has a history of prior violations, we find that it would be inappropriate to assess a penalty in this case.

Accordingly, the citation for violation of 1918.105(a) is modified to other than serious within the meaning of 29 U.S.C. 666 and is affirmed as modified. No penalty is assessed.

So ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I agree with the Chairman that no penalty should be assessed in this case largely because of the good faith of the employer. I do not join in his discussion of whether or not a repeated [*7] violation was committed in this case.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated because respondent did all that it was required to do under the Act to compel its recalcitrant employees to comply with the cited standard. As I have explained in some detail in several prior cases similar to this one, holdings such as this are contrary to the "purpose and policy" of the Act as well as common sense, clearly tend to induce labor strife and unrest, and improperly disregard the dual responsibility placed on employees by the Act to comply with occupational safety and health standards. See my separate opinions in Secretary v. John T. Clark & Sons of Boston, Inc., OSAHRC Docket No. 10554, December 22, 1976; Secretary v. Independent Pier Company, 20 OSAHRC 810 (1975); and Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975).

As in those prior cases, respondent in this case did everything it could reasonably do to ensure compliance with the Act. If anything, respondent went further than contemplated by the Act to encourage compliance by its employees. This is well illustrated by respondent's supplying liners for the hardhats when employees [*8] complained that the hats were too cold to wear during winter months. To require anything more would be to impose strict liability on this employer, a concept consistently and specifically rejected by both the United States Courts of Appeals and the Commission. Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946 (3rd Cir. 1974); REA Express, Inc., v. Brennan, 495 F.2d 822 (2d Cir. 1974); National Realty and Construction Company, Inc., v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973); Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975).

Furthermore, it should be noted that my colleagues in this case have affirmed a violation on a basis that was not charged in the citation. They find a violation because the employer did not discharge recalcitrant employees - a charge that the Secretary of Labor did not make. For a pertinent discussion holding that this is an improper basis for sustaining a violation, see Circuit Judge Tone's concurring [*9] opinion in Anning-Johnson Co., v. OSAHRC, 516 F.2d 1081, 1091-1092 (7th Cir. 1975).